[Gnso-igo-ingo-crp] FOR REVIEW: Updated Draft Final Report
Paul Tattersfield
gpmgroup at gmail.com
Sun May 20 10:11:43 UTC 2018
The immunity issue has to be settled BEFORE the wording of any options can
be discussed never mind voted upon. It was and is the co-chairs avoidance
of this issue that has led to delay after delay. It is very simple either I
am right or Swaine is right since these are mutually exclusive positions.
So far no one has come forward to explain how Swaine can possibly be right.
The only comments have been the former co-chair saying he now wants to file
a minority dissent opinion but still not prepared to engage and try and
show how Swaine can possibly be right and the remaining co-chair simply
restating the options in an attempt to push on regardless as though this
fundamental issue hasn’t even been raised.Swaine introduces irrelevant
complexity once that complexity is removed then, and only then, will it be
very easy to work on the wording of a final set of options.
On 6ter only evidencing underlying rights, if I remember correctly we had a
similar problem with the draft report where those driving the working group
wouldn't listen and the resulting public comment period wasn't kind. The
working group then had to waste a not inconsiderable amount of its time
redrafting the report to correct that fundamental error. The fact that this
issue is still occurring in the draft final report is quite frankly nothing
short of shocking.
On Sat, May 19, 2018 at 10:09 PM, George Kirikos <icann at leap.com> wrote:
> Hi folks,
>
> Here are my notes/thoughts on the draft document that was sent on May 11th:
>
> 1. Page 5, Recommendation 2 & Page 14, Recommendation 2:
>
> "An IGO May consider this to be an option where it does not have
> **REGISTERED** trademark rights in its name or acronym (as applicable)
> but believes it has certain unregistered **TRADEMARK** rights for
> which is might adduce….."
>
> (a) add the word "registered" before "trademark rights"
>
> i.e. I thought the whole point of our change in stance was to allow
> for Article 6ter to be used as evidence of (but not necessarily proof
> of) unregistered (or common law) *trademark* rights? i.e. we changed
> the 'proof' standard (i.e. sufficiency) to "evidence for", but also
> emphasized that it's not just 'legal rights' but *trademark rights* to
> be consistent with the UDRP/URS standard that it they're procedures
> for trademark infringement.
>
> I believe this was that Paul Keating raised on the May 10, 2018 call.
>
> [Personally, I was fine with the original recommendation (given that
> ultimately there are 2 other prongs in the 3-prong UDRP test, and that
> the first prong is usually easily met, and rarely determinative of the
> outcome!), but I thought that was what we had agreed to change it to,
> reflecting public comments, e.g. from the IPC and others.]
>
> 2. Page 18 (immunity) (and perhaps also around page 31).
>
> Needs to be a paragraph or two to talk about how immunity is a defense
> to an action brought against an IGO, and doesn't exist when an IGO
> initiates a dispute (i.e. is the complainant). There should be no
> expectation of an IGO to have immunity for the overall dispute
> (looking at the dispute before any UDRP/URS or court action takes
> place), since it's the one initiating the dispute. If the UDRP/URS
> were properly designed, then the IGO should gain no "new legal rights"
> from the filing of a UDRP/URS, compared to the situation where they
> simply filed a court action instead.
>
> Had the UDRP/URS not existed or not been used, the IGO would be the
> complainant in a court action, and thus would have no ability to
> assert immunity since it is not the defendant. However, a court
> actions seeking de novo review, brought by a losing domain name
> registrant after a UDRP/URS causes the IGO to be the defendant (rather
> than the complainant). This role reversal between complainants and
> defendants causes a quirk of process to exist, whereby the IGO (now
> the defendant) might attempt to assert immunity as a defense (despite
> the existence of the mutual jurisdiction clause), an argument that
> could not have been made had the role reversal not taken place.
>
> In other words, the Swaine report isn't looking at the overall context
> of the IGO being the initiator of the dispute. He's taken things as
> they are, i.e. accepting the role reversal as it exists (without
> questioning these unintended side effects) in terms of allowing
> immunity to be asserted, when that's not really what was ever intended
> holistically when the UDRP/URS were created -- they weren't intended
> to give such advantages to any party, create new legal rights, or
> interfere with existing rights. Although, we know now that these
> procedural quirks do exist, both in this context with immunity, and
> the UK "no cause of action" scenario e.g. in Yoyo.email.
>
> Several other sections might need to change, for example if Option #1
> is the consensus. i.e. it would no longer be correct on page 20 to
> say:
>
> " Nevertheless, the Working Group has strived to find a balanced
> outcome that respects and preserves an IGO’s ability to assert of
> jurisdictional immunity as well as a registrant’s right to appropriate
> and available legal recourse after initially losing a UDRP or URS
> determination."
>
> since we'd be recommending that the UDRP/URS determination be set
> aside to put both parties back in the same positions they were in
> before the UDRP/URS disputes were initiated, to ensure that the rights
> to court access were not interfered with.
>
> 3. Page 37: "The Working Group also noted that the IGO Small Group
> Proposal continued to be based on the assumption that IGOs are able to
> claim broad jurisdictional immunity in multiple national courts, which
> the Working Group concluded is at substantial odds with the expert
> opinion provided by Professor Swaine."
>
> It's deeper than this. It's not just based on Swaine's report, which
> is only looking at it from the point of view of an appeal to the
> courts after a UDRP/URS, but rather whether an IGO is entitled to
> *any* immunity when it is the initiator of a dispute. Clearly it's
> never entitled to immunity when it initiates the dispute. [same
> analysis in the table on the 3rd column, e.g. on page 38]
>
> 4. Page 45/46: Option #3 description is inconsistent. It says early on
> that "…with such action limited to deciding the ownership of the
> domain name." But, then later on it says "The parties shall have the
> option to mutually agree to limit the original judicial proceedings to
> solely determining the ownership of the domain name." So, in the first
> text, it's saying that there's no option -- the action is necessarily
> limited to only deciding the ownership of the domain name. In the
> second text, it's saying that's an option.
>
> 5. Page 46: Description of Option #4 only mentions the UDRP. It should
> have obviously mentioned both UDRP and URS.
>
> 6. Page 46/47: Description of Option #6: presumably it to was intended
> to refer to both UDRP & URS, not just the UDRP.
>
> 7. Footnote 65 (page 47); recordings of the Section 3.7 appeal are
> referenced, but the recordings between the co-chairs and Heather/Susan
> have yet to be posted -- they should be posted too, for completeness
> (these were requested before).
>
> 8. Generally, I would suggest "explanatory text" to understand the
> basis for each of the 6 options on pages 45-46. The previous analysis
> (i.e. used in the October 2017 anonymous poll, as well as in advance
> of the March 2018 office hours) was perhaps non-neutral.
>
> Given I may myself not be considered "neutral", I would suggest
> possible text be agreed upon by the group. e.g. [not final text, just
> possible starting point!]
>
> a) Option #1 -- attempts to put the parties back in the same legal
> positions they were before the UDRP/URS was initiated, thus IGO as
> complainant can proceed to the courts without the UDRP/URS having
> caused any interference with anyone's legal rights
>
> b) Option #2 -- attempts to be a compromise between Option #1 and
> Option #3 based on the creation date of the domain, allowing for an
> empirical analysis/review of Option #3 by design
>
> c) Option #3 -- [minefield here!!] -- attempts to use arbitration
> mechanism if de novo review on the merits via the courts is not
> available to the parties (because the IGO successfully asserted
> immunity)
>
> d) Option #4 -- recognizes that the underlying root cause of the
> "quirk of process" involving sucessful assertion of immunity by IGOs
> in a court action is identical to that of the UK "no cause of action"
> issue in Yoyo.email, i.e. due to the role reversal of complainants and
> defendants; an overall solution to that root cause of lack of access
> to the courts for registrants in both situations is best handled in
> the RPM PDP
>
> e) Option #5 -- attempts to make a small technical fix to treat "in
> rem" and "in personam" actions in the same manner by registrars
> (regarding locking of domain names). Since "in rem" actions would
> avoid the immunity question entirely, for those jurisdictions where in
> rem actions can be brought, this technical fix would reduce the number
> of scenarios in which the "quirk of process" is encountered. The
> technical fix doesn't create anything "new" -- it merely instructs
> registrars to lock the domain name for an "in rem" case in the same
> manner as they would an "in personam" case --- something the creators
> of the UDRP/URS inadvertently fumbled.
>
> f) Option #6 -- attempts to add mandatory mediation step prior to
> UDRP/URS dispute determination, given that 30% of disputes are
> resolved in mediation empirically (via Nominet's DRS experience). This
> has the effect of uniformly reducing the risk of encountering the
> "quirk of process" by 30%. Otherwise, if the IGO successfully asserts
> immunity in a court action brought by the registrant, revert to Option
> #1. Also, permits registrants the option of mandatory arbitration
> against the IGOs, which IGOs cannot refuse (if IGOs refuse, set aside
> the UDRP/URS determination).
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
> On Fri, May 11, 2018 at 4:01 PM, Mary Wong <mary.wong at icann.org> wrote:
> > Dear all,
> >
> >
> >
> > Please find attached a slightly-updated version of the Draft Final
> Report,
> > in both Word and PDF formats. As mentioned on the Working Group call
> > yesterday, staff has not redlined it against the Initial Report that was
> > published in January 2017 for public comment, since the result made for a
> > visually complicated document due to our having moved text around on top
> of
> > new edits. What you will see, however, is a redline of the original Draft
> > Final Report that we had circulated on Wednesday, with the redlined text
> > being updates and new suggestions that we added following the call
> > yesterday.
> >
> >
> >
> > In particular, please take note that:
> >
> > To facilitate your review of the substantive changes and new text added
> to
> > the Initial Report, we have highlighted these in yellow as best we could;
> > We have attempted to suggest modified text for Recommendation #2, to try
> to
> > address the group comments from yesterday about accurately reflecting the
> > group’s agreement (amending its previous initial recommendation) on
> Article
> > 6ter of the Paris Convention; and
> > We will need to update certain portions (e.g. the results of the formal
> > consensus call, any final agreed text on IGO immunity, membership and
> > attendance, Annexes etc.) before the final version is submitted to the
> GNSO
> > Council at the end of our consensus process.
> >
> >
> >
> > As mentioned on the call, staff will greatly appreciate it if you can
> focus
> > your review on the substance of the report, especially as regards the
> > recommendations, rather than on revising text because you prefer a
> different
> > wording (and not because the text is inaccurate). In particular, we hope
> > that you will not feel it necessary to edit the text that was retained
> from
> > the Initial Report (save where you believe the actual substance needs to
> be
> > deleted or revised). Similarly, while we will of course be glad to have
> > typos and grammatical errors pointed out, please do not feel that you
> need
> > to do so as we will scrub the text prior to Council submission. We will
> also
> > be grateful if, as far as possible, you can suggest edits and revisions
> via
> > comment balloons (or via point-by-point email response) rather than a
> direct
> > redline – to allow us to keep better track of multiple suggestions and
> > versions.
> >
> >
> >
> > At present, we do not have information as to when the next Working Group
> > call will take place. Given the need for Petter and Susan to consult with
> > the GNSO Council leadership, however, and to allow time for you to review
> > the report, staff would like to suggest that you send back your comments
> no
> > later than Monday 21 May.
> >
> >
> >
> > Thanks and cheers
> >
> > Mary & Steve
> >
> >
> >
> > On 5/11/18, 15:18, "George Kirikos" <icann at leap.com> wrote:
> >
> > P.S. If it turns out you do end up editing Wednesday's draft report
> >
> > before sending out the Word format, please also send out the PDF
> >
> > version (i.e. the PDF version can be referenced by page number, for
> >
> > those submitting suggested text/edits, and is more easily printed out
> >
> > in a standard format for everyone).
> >
> >
> >
> > e.g. page XXX, para N, change "blah" to "blah blah blah"
> >
> >
> >
> > With Word, the page numbers might vary from person to person when
> > printing.
> >
> >
> >
> > Sincerely,
> >
> >
> >
> > George
> >
> >
> >
> > On Fri, May 11, 2018 at 3:00 PM, George Kirikos <icann at leap.com>
> wrote:
> >
> > > Hi Mary,
> >
> > >
> >
> > > I don't think anyone was really looking for an updated version of
> the
> >
> > > document from Wednesday, to reflect things said on Thursday. I
> think
> >
> > > folks just wanted the Word version of Wednesdays document, which
> >
> > > should be easy to provide (i.e. the master document is presumably
> in
> >
> > > Word format, so it's just a matter of sending that which was used
> to
> >
> > > generate Wednesday's PDF).
> >
> > >
> >
> > > So, it's just as easy as: "Reply All", "attach", "click the
> document
> >
> > > that already exists from Wednesday", and "Send" (depending on your
> >
> > > email client).
> >
> > >
> >
> > > Have a nice weekend and Mother's Day, folks!
> >
> > >
> >
> > > Sincerely,
> >
> > >
> >
> > > George Kirikos
> >
> > > 416-588-0269
> >
> > >
> > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.
> leap.com_&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6
> sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=
> CdNmKXARLo7QtADxTLdhcz2ibX6WUsM-EErRuOOqpjw&s=
> K7fp2edkDFO2c9Y11st2Y72BZ0SmQP-ZEQD2D5jMCHE&e=
> >
> > >
> >
> > >
> >
> > >
> >
> > >
> >
> > >
> >
> > >
> >
> > >
> >
> > >
> >
> > > On Fri, May 11, 2018 at 2:42 PM, Mary Wong <mary.wong at icann.org>
> > wrote:
> >
> > >> Thank you Paul – yes, staff intends to send out the Word version
> of
> > the
> >
> > >> draft Final Report today. We are doing our best to get that out to
> > everyone
> >
> > >> within the next hour or so, as we have had to support other
> meetings
> > and
> >
> > >> deadlines so we have not been able to fully incorporate feedback
> from
> > the
> >
> > >> call yesterday (especially in relation to the 6ter
> recommendation).
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >> Best regards,
> >
> > >>
> >
> > >> Mary & Steve
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >> From: Paul Keating <Paul at law.es>
> >
> > >> Date: Friday, May 11, 2018 at 14:12
> >
> > >> To: Mary Wong <mary.wong at icann.org>, "gnso-igo-ingo-crp at icann.org
> "
> >
> > >> <gnso-igo-ingo-crp at icann.org>
> >
> > >> Subject: [Ext] IGO WG - Draft Report in Word Format
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >> Mary,
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >> I had thought you agreed to forward the current Draft in WORD
> format.
> > I
> >
> > >> have not yet received it. Please send it asap given the need to
> > quietly
> >
> > >> provide feedback.
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >> Thanks,
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >>
> >
> > >> Paul Keating
> >
> > >>
> >
> > >>
> >
> > >> _______________________________________________
> >
> > >> Gnso-igo-ingo-crp mailing list
> >
> > >> Gnso-igo-ingo-crp at icann.org
> >
> > >> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
> >
> >
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180520/46c55089/attachment-0001.html>
More information about the Gnso-igo-ingo-crp
mailing list